Monday, November 19, 2012

Justices Behaving Badly

Last week Judge Richard Posner kicked off a two-day
symposium at Chicago-Kent College of Law on the Supreme Court and the AmericanPublic with an address on “The Supreme
Court and Celebrity Culture.” Judge Posner
offered his characteristic mix of provocation and humor in discussing the “public
intellectual activities” of Supreme Court Justices. His assessment of the last half century of
Supreme Court history (going back to the early 1960s, when he clerked for
Justice Brennan) was not particularly flattering. Increasingly during this period, the justices
have become too enamored with the limelight of the public stage. Basically, they talk too much, and they talk
too much about things they don’t know anything about.

Judge Posner was particularly exercised about the slew of
“trials” Supreme Court justices have presided over involving historical or
literary figures. Justice Kennedy has a
kind of traveling production in which he presides over a murder trial for
Hamlet, whose lawyers argue that their client was insane when he killed
Polonius. In 1987, Justices Blackmun,
Brennan, and Stevens participated in a mock trial in which the question of the
authorship of Shakespeare’s plays was considered. The three-justice panel concluded that
William Shakespeare was indeed the author, although Justice Stevens
subsequently reconsidered the issue and has come to believe that the real
author is Edward de Vere, the Earl of Oxford.
Apparently, he has persuaded some of his colleagues on this point.

While some might see this as all in good fun, Posner thinks
not. Leave this kind of discussion to historians and literary scholars, he
said. There is something undignified
about Supreme Court justices pontificating on such matters.

Fortunately, Posner’s stern judgment did not extend to
Justice Sotomayor recent visits to Sesame Street. This was fine, he explained. The justice simply was explaining the role of
the judge in resolving disputes, something she is eminently competent to
do. (Posner was referring to Justice
Sotomayor’s first visit to the show. In
her more recent appearance, the justice gave Abby Cadabby career advice, which
included the heartbreaking admonition that princess was not a solid career path:
“Pretending to be a princess is fun, but it is definitely not a career.” Judge Posner did not opine on whether this topic
risked veering too far from the justice’s area of expertise.)

Posner also discussed Supreme Court oral arguments, and here
too he saw troubling developments. In
their ever increasing volubility from the bench, the justices were taking
things too far, further undermining the dignity of the Court.

(When politely pressed during Q&A on whether he saw any
tension between his criticism of the justices and his own famously outspoken
and astoundingly wide-ranging career as public intellectual, Posner laughed,
suggested that his books are intended as serious scholarly interventions, and shifted the
subject.)

Posner concluded his remarks on a rather mischievous note,
explaining that ultimately these undignified practices by Supreme Court justices
were inconsequential because dignity had disappeared from public life. It is hard to know how seriously to take this
point. To be sure, standards of dignity
for our public officials have evolved quite dramatically over the past half
century. But there are still norms of
propriety that operate in public life.
Furthermore, it would seem that if there were any place where these
norms have been particularly resilient, it would be with regard to the behavior
and activities of Supreme Court justices.

While there has been a trend in recent decades toward a more
publicly engaged Court, there are still some quite powerful assumptions about
proper behavior for a sitting Justice.
Recall, for example, the outcry over Justice Scalia’s visit to Michelle
Bachmann’s Constitution Study Group, or the criticism of the Court that
followed oral arguments in the health care case. People still have certain expectations of
dignified conduct for Supreme Court justices. Furthermore, it is hard to imagine members of
the current Court engaging in some of the extrajudicial activities that
characterized earlier Courts—Justice Jackson leaving the Court for a year to
prosecute Nazis in Nuremberg; Chief Justice Vinson playing poker with President
Truman (and offering advice on the constitutionality of seizing the steel
industry); Justice Douglas angling for the presidency; Chief Justice Warren
leading the investigation into the Kennedy assassination; Justice Fortas
continuing in his role as President’s Johnson’s confidant and advisor while on
the Court. Perhaps our more recent
generation of justices turn to Shakespeare and Sesame Street simply because they
have fewer demands on their free time?